The Role of Lawyers in the World Trade Organization

Ehrenhaft, Peter D., Vanderbilt Journal of Transnational Law

The World Trade Organization is a marvelously ambitious effort of now 140 countries to bring the rule of law to international trade. The WTO is a logical extension of the inspired ideas of the draftsmen of the General Agreement on Tariffs and Trade (GATT), who recognized at the end of World War II that the seeds of that conflagration were sown, in part, by the chaotic condition of international trade following World War I.

During that inter-war period, the United States adopted its Antidumping Act of 1921 and its Smoot-Hawley Tariff Act of 1930. Both survive to this day. By 1934, however, the Roosevelt Administration proposed reciprocal trade agreements intended to soften the impact of the barriers to our markets those laws created. The GATT was a logical extension of that concept, essentially enshrining as the two keystones of freer trade "national treatment" and "most-favored nation" commitments. Indeed, the GATT is sometimes characterized as two paragraphs--with two thousand pages of exceptions. The WTO Agreements now cover twenty-seven thousand pages.

From the beginning, the GATT addressed the settlement of disputes between trading nations. Disputes were recognized as inevitable. The GATT dispute resolution procedure was part mediation and part arbitration. It depended on the good offices of experienced representatives of unaffected members to help the disputing parties find common ground to settle their differences. Increasingly, however, particularly representatives of the United States sought a more rigorous procedure leading to a judgment that one party was right and the other one was wrong--and the latter had either to correct its ways or provide compensation to the aggrieved complainant.

Increased American attachment to this rule of law model through the 1980s prompted U.S. negotiators of the WTO agreements to seek a greatly strengthened Dispute Settlement Body (DSB). This Body maintained the previous system of panels to hear--and settle--trade disputes. In addition, an Appellate Body was to be created with semi-permanent judges to review the legal issues raised in panel reports. Moreover, and critically, the judgment of a panel was to be implemented by the affected parties unless a consensus of all the WTO's members decided it need not be adopted.

Paradoxically, although these results of the WTO negotiations appeared to be a triumph of the rule of law, the United States, in particular, was quite diffident about the notion that private lawyers should have a role in the system. The concern of the United States about including private lawyers as participants in the dispute resolution procedures of the WTO sprang from a number of factors. They included, first, a fear that such lawyers might be excessively aggressive and unable or unwilling to recognize the possible advantages of compromise and only partial victory. Concern was also expressed about such lawyers' possible conflicts of interest and their inability to keep confidential the information to which they might be given access in the course of such proceedings. In negotiating the NAFTA before the conclusion of the Uruguay Round creating the WTO, both Canadian and U.S. negotiators were reluctant to give private counsel the right to appear on behalf of specific industries or economic interests in their countries before NAFTA dispute settlement bodies--other than under Chapter 19 that created special panels in lieu of court review of antidumping and countervailing duty orders. Neither government wanted the lawyers for U.S. Steel to argue independently for their client's views in other NAFTA--or, later, WTO--fora, lest it lessen the governments' ultimate control of their trade policy.

This perspective, arguably proper in the NAFTA context, lacked an appreciation of the problem of many members of the WTO. Small and often new states in the organization rarely employ experienced WTO specialists in their governments. They often lack any lawyers versed in WTO procedures, able to represent their positions in WTO dispute settlement proceedings. …

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